(dissenting).
[¶ 79.] I regretfully dissent in the cases involving Bertsch and Martinmaas because in my opinion, the law dictates that I must.
[¶ 80.] In both of the above cases, the patients testified that Dr. Engelmann sexually violated them. Further, the plaintiffs put on other bad acts evidence from another patient who testified that during a gynecological exam she had observed Dr. Engelmann in the room with his penis hanging out of his unzipped pants. This was the incident which provided the impetus of the criminal and civil cases filed against Dr. Engelmann.
[¶ 81.] Does sexual misconduct by a predator physician constitute medical malpractice? To establish a medical malpractice action, one must establish that the medical professional “breached a recognized standard of care and was thereby negligent.” See Schrader v. Tjarks, 522 N.W.2d 205, 214 (S.D.1994) (Amundson, J., concurring in part and dissenting in part). The gist of the medical malpractice action is the “negligence ” of the doctor in rendering services to the patient.9 A majority of jurisdictions have determined that “sexual assault by a physician on a patient is generally not covered by malpractice insurance.” See Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 698 A.2d 9, 12-14 (1997). Further, the scope of medical malpractice coverage has been defined as “limited to the performing or rendering of ‘professional’ acts or services.” See id. at 13 (quoting Marx v. Hartford Accident & Indemn. Co., 183 Neb. 12, 157 N.W.2d 870, 871-72 (1968)). Clearly, the intentional act of sexually assaulting a patient is devoid of any “performance of professional acts or services.”
[¶ 82.] In American jurisprudence, there exists an abiding principle “ ‘that common *618sense does not take flight when one enters a courtroom.’ ” See St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 610 A.2d 1281, 1286 (1992) (Borden, J., dissenting) (quoting American Nat’l Fire Ins. Co. v. Schuss, 221 Conn. 768, 607 A.2d 418 (1992)). This common sense should not be left at the door, even at this appellate level. Common sense tells me that sexual assault is an “intentional” tort. See., e.g., Paneson v. Zubillaga, 753 So.2d 127, 129 (Fla.Dist.Ct.App.2000) (addressing doctor’s unlawful and unpermitted sexual touching of patient as an intentional tort); Primeaux v. United States, 149 F.3d 897, 903 (8th Cir.1998) (Loken, J., dissenting) (noting that under the Federal Tort Claims Act § 2680(h), “[r]ape and other sexual assaults are within the classes of intentional torts”); Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163, 1166 (1999) (discussing employer’s vicarious liability for an employee’s intentional tort of sexual assault); Howcroft v. Howcroft, 223 B.R. 845, 849 (N.H.Bank.1998) (noting that sexual assault falls within traditional category of intentional tort); Moen v. Baransky, 1997 WL 666763, *1 (Conn.Super.Ct.1997) (addressing the elements of the “intentional tort of sexual assault”). Both these patients had pled an intentional tort claim, but dismissed those claims prior to trial.
[¶ 83.] In the case of St. Paul Insurance Co. of Illinois v. Cromeans, 771 F.Supp. 349 (N.D.Ala.1991), the court was dealing again with a coverage issue involving sexual mistreatment of patients and held as follows:
ST. PAUL’S professional liability policy issued to [Dr.] Joe G. Cromeans was intended by the insurer and the insured to cover the insured doctor for injuries he negligently or wantonly caused while medically treating or attempting to medically treat a patient for a medical ill but not for intentional actions taken by the insured doctor directed to or towards the patient to satisfy the doctor’s sexual lust or to otherwise further his own pruñent interests.
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The Hirst court quoted an oft-used definition of “professional services” from Marx v. Hartford Accident and Indemnity Co., 183 Neb. 12, 157 N.W.2d 870 (1968).
The scope of “professional services” does not include all forms of a doctor’s conduct simply because he is a doctor ... Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind ... In determining whether a particular act is of a professional nature or a “professional service” we must look not to the title or character of the party performing the act, but to the act itself.
Id. at 353 (citing Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho Ct.App.1984)) (emphasis added).
[¶ 84.] To consider Dr. Engelmann’s sexual misconduct malpractice under the guise of negligence would amount to covering an intentional act in a lamb’s coat so that the wolf has coverage. I submit that since the intentional tort theory against Dr. Engelmann was dismissed prior to trial, the jury should not have been considering his intentional misconduct. While I find it highly -deplorable that a professional would deliberately and intentionally engage in such a flagrant violation of the law and professional ethics solely to satisfy his prurient interests, neither the loathsomeness of the tortfeasor’s conduct nor the sympathy towards the victims should control our decision in this case.
[¶ 85.] We have often stated that although a party is not entitled to a perfect trial, they are entitled to a “fair trial.” Atkins v. Stratmeyer, 1999 SD 131, ¶ 57, 600 N.W.2d 891, 904 (Amundson, J., dissenting) (quoting McDonough Power *619Equipment, Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 848, 78 L.Ed.2d 663, 669 (1984)). A fair trial did not occur in the present case due to the injection of the alleged sexual assault, an intentional act, into the malpractice action. It is especially unfair considering the fact that the parties voluntarily dismissed the intentional tort claims prior to trial. The trial court should guard against allowing inflammatory evidence to be presented at trial which has no beneficial value other than escalating the damages award. See, e.g., Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 14 n. 3, 579 N.W.2d 1, 5 (stating that “[t]he ideal in any trial is to keep improper and inflammatory questions or evidence from the jury”). The majority’s decision attempts to support its conclusion that malpractice encompasses more than negligence by citing SDCL 58-5B-1, which defines medical malpractice as “coverage against the legal liability of the insured ... arising out of the death or injury of any person as a result of negligence or malpractice in rendering professional services.” (emphasis added by majority opinion). As Justice Border stated in his dissent in Shemoiv, the intentional sexual assault by Dr. Engelmann “no more constituted the rendering of professional services than if a lawyer, angry at his client, hit her over the head with volume 24 of Corpus Juris Secondum.” 610 A.2d at 1286 (Borden, J., dissenting). I submit that Dr. Engelmann was denied a fair trial where the trial of an intentional act transpired under the guise of it being a negligence/malpractice case.10
[¶ 86.] I would reverse and remand this case for a retrial solely on the medical malpractice claim relating to the alleged use of the “uterine massage and gauze procedure” since it certainly appears that these plaintiffs are entitled to recover under a real malpractice theory rather than the intentional tort.
. Jury Instruction 3 stales that professional negligence (malpractice) could result from the defendant being "negligent and deviating] from the recognized standard of care by engaging in inappropriate and improper sexual contact with each plaintiff during her gynecological examination.” Nowhere in the remainder of the court’s instructions is there any definition or statement as to what ele-merits have to be proven by a preponderance of the evidence to establish malpractice by inappropriate and improper sexual contact. By inserting this statement of the law of this case, it tells the jury that there is a claim for negligent sexual malpractice, but how is the jury to know when it is negligence or intentional when the bulk of the evidence is inappropriate, intentional sexual contact.
. In Oxford Dictionary of American Legal Quotations 229 (1993) (quoting William Penn, Fruits of Solitude 71 (llthed 1906)), it provides that "[j]ustice is justly represented blind, because she sees no difference in the parties concerned.... She has but one scale and weight, for rich and poor, great and small.... Her sentence is not guided by the person, but the cause .... Impartiality is the life of justice, as that is of government.” No matter whether a person is rich or poor, black or white, good or bad, a doctor or street person, they come into a courtroom on the same footing. Everyone comes into court on the same level and that does not appear to be the case here.